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Chapter 3 Due Process, Equal Protection, and Civil Rights

Those who deny freedom to others deserve it not for themselves.

Abraham Lincoln

CHAPTER OBJECTIVES

After studying this chapter you should better understand:

· • The standards applied for determining whether a procedure satisfies the constitutional due process requirements

· • The manner in which the restrictions on federal government action in the Bill of Rights have been incorporated into the due process guaranty that applies to state actions

· • The U.S. Supreme Court’s approach to determining whether classifications violate the constitutional equal protection requirements

· • The classifications to which “strict scrutiny” is applied in the equal protection analysis

· • The basic remedies available for civil rights violations

At the heart of the rule of law lie the ideals that everyone should be treated fairly and equally before the law. Toward this end the U.S. Constitution protects individual rights by constraining government. But fairness and equality cannot be reduced to prohibitions. To reach more broadly the Constitution also includes fundamental guaranties. Many important court decisions and legislative acts addressing individual rights have been based on the two most fundamental general guaranties: the Due Process Clause and the Equal Protection Clause.

A Due Process Clause was part of the Fifth Amendment in the original Bill of Rights and it was aimed at the federal government. It provides that no person shall be “deprived of life, liberty, or property, without due process.” The original Bill of Rights did not mention equal protection of the laws in a general sense. The Fourteenth Amendment, added after the Civil War and aimed at former slave states, included the same due process provisions as the Fifth Amendment. The Fourteenth Amendment also included the Equal Protection Clause. It provides that no state shall “deny to any person within its jurisdiction the equal protection of the laws.” Although nothing in the text said that equal protection applied to the federal government as well as to the states, the U.S. Supreme Court eventually held that it did. In 1954 in Bolling v. Sharpe the Court said that “the concepts of equal protection and due process, both stemming from our American ideal of fairness, are not mutually exclusive. The ‘equal protection of the laws’ is a more explicit safeguard of prohibited unfairness than ‘due process of law,’ and, therefore, we do not imply that the two are always interchangeable phrases. But, as this Court has recognized, discrimination may be so unjustifiable as to be violative of due process.” 1 Consequently due process and equal protection apply to both federal and state laws.

The Due Process and Equal Protection Clauses address government action. They require that laws and legal procedures be fair. As discussed in the final section of this chapter, other constitutional provisions or laws may directly address unfair or discriminatory rules or procedures involving private individuals or companies. The constitutional limitations on government action also are relevant to private conduct that involves the government. In the famous 1948 case of Shelley v. Kraemer, 2 the U.S. Supreme Court held that the Equal Protection Clause barred a state court from enforcing racially restrictive private real estate covenants because state action would be involved. The Court also instructed that the constitutional prohibitions on government action apply to a private entity that is entrusted with authority that is “traditionally the exclusive prerogative of the State,” as when a ship building company’s governance of a town was the functional equivalent of a municipality. 3

Due process and equal protection are broad concepts, but they are often the basis for invalidating specific governmental acts as well as for imposing substantial liabilities. Those who are entrusted with government authority must be mindful of these important legal principles. This chapter provides an introduction to the U.S. Supreme Court’s interpretation of the Due Process and Equal Protection Clauses and to the remedies potentially available to those who suffer harm from violations of these and other fundamental rights.

Due Process

The Due Process Clauses of the Fifth and Fourteenth Amendments can readily be understood as prohibiting the government from incarcerating individuals or taking their property without legal authority or without affording a meaningful opportunity to contest the action. This is known as procedural due process. The U.S. Supreme Court has also found in the Due Process Clauses a prohibition against infringement on substantive rights regardless of the procedure employed, which is known as substantive due process.

Procedural Due Process

Individual rights are subject to state action in a wide variety of contexts as different as denial of a permit to burn trash, an elementary school suspension, and imposition of the death penalty for a heinous crime. What process is due in any given circumstance? The courts have taken an ad hoc approach to answering this question, weighing what is at stake and the nature of the opportunity to be heard.

At one end of the spectrum, courts impose rigorous requirements when someone is prosecuted for a crime, especially when the punishment can be severe. For example, in death penalty cases the U.S. Supreme Court’s review has been described as super due process. In such cases courts closely scrutinize the details of the trial and sentencing procedure. At the other end of the spectrum the courts have not involved themselves much in the details of procedures for handling public benefit claims. In this context the courts allow more flexibility to the responsible officials to design a review process.

Minimum Procedure: Mathews v. Eldridge

The modern legal environment involves many proceedings that the Constitution’s framers could not have envisioned. For example, local boards make decisions that restrict property development, and federal agencies make decisions about employment and disability benefits. As discussed in Chapter 11 of this book, a vast regulatory apparatus has developed to administer governmental economic and social programs. Although administrative authorities have been allowed considerable discretion to fashion their review procedures, courts still endeavor to insure that those involved in the procedures are afforded due process.

In 1970 in Goldberg v. Kelly, 4 the U.S. Supreme Court held that due process required a state agency to hold a hearing at which claimants could present evidence before their welfare benefits were terminated. The decision was widely criticized for creating a constitutional mandate for evidentiary hearings that would overwhelm administrative programs. A few years later, the Court clarified its requirement. In Mathews v. Eldridge, the Court examined what process was required before social security disability benefits could be terminated. The majority confined the pretermination hearing requirement and identified broad considerations for determining whether a process is sufficient.

Mathews v. Eldridge 424 U.S. 319 (1976)

Justice Powell, writing for the Court.

The issue in this case is whether the Due Process Clause of the Fifth Amendment requires that prior to the termination of Social Security disability benefit payments the recipient be afforded an opportunity for an evidentiary hearing.

Cash benefits are provided to workers during periods in which they are completely disabled under the disability insurance benefits program created by the 1956 amendments to Title II of the Social Security Act. Respondent Eldridge was first awarded benefits in June 1968. In March 1972, he received a questionnaire from the state agency charged with monitoring his medical condition. Eldridge completed the questionnaire, indicating that his condition had not improved and identifying the medical sources, including physicians, from whom he had received treatment recently. The state agency then obtained reports from his physician and a psychiatric consultant. After considering these reports and other information in his file the agency informed Eldridge by letter that it had made a tentative determination that his disability had ceased in May 1972. The letter included a statement of reasons for the proposed termination of benefits, and advised Eldridge that he might request reasonable time in which to obtain and submit additional information pertaining to his condition.

In his written response, Eldridge disputed one characterization of his medical condition and indicated that the agency already had enough evidence to establish his disability. The state agency then made its final determination that he had ceased to be disabled in May 1972. This determination was accepted by the Social Security Administration (SSA), which notified Eldridge in July that his benefits would terminate after that month. The notification also advised him of his right to seek reconsideration by the state agency of this initial determination within six months.

Instead of requesting reconsideration Eldridge commenced this action challenging the constitutional validity of the administrative procedures established by the Secretary of Health, Education, and Welfare for assessing whether there exists a continuing disability.

The District Court concluded that the administrative procedures pursuant to which the Secretary had terminated Eldridge’s benefits abridged his right to procedural due process. We reverse.

Procedural due process imposes constraints on governmental decisions which deprive individuals of “liberty” or “property” interests within the meaning of the Due Process Clause of the Fifth or Fourteenth Amendment.

This Court consistently has held that some form of hearing is required before an individual is finally deprived of a property interest. The “right to be heard before being condemned to suffer grievous loss of any kind, even though it may not involve the stigma and hardships of a criminal conviction, is a principle basic to our society.” Joint Anti-Fascist Comm. v. McGrath, 341 U.S. 123, 168 (1951) (Frankfurter, J., concurring). The fundamental requirement of due process is the opportunity to be heard “at a meaningful time and in a meaningful manner.” Armstrong v. Manzo, 380 U.S. 545, 552 (1965).

In recent years this Court increasingly has had occasion to consider the extent to which due process requires an evidentiary hearing prior to the deprivation of some type of property interest even if such a hearing is provided thereafter. In only one case, Goldberg v. Kelly, 397 U.S. 254, 266–71 (1970), has the Court held that a hearing closely approximating a judicial trial is necessary. In other cases requiring some type of pretermination hearing as a matter of constitutional right the Court has spoken sparingly about the requisite procedures.

These decisions underscore the truism that “‘[d]ue process,’ unlike some legal rules, is not a technical conception with a fixed content unrelated to time, place and circumstances.” Cafeteria Workers v. McElroy, 367 U.S. 886, 895 (1961). “[D]ue process is flexible, and calls for such procedural protections as the particular situation demands.” Morrissey v. Brewer, 408 U.S. 471, 481 (1972). Accordingly, resolution of the issue whether the administrative procedures provided here are constitutionally sufficient requires analysis of the governmental and private interests that are affected. More precisely, our prior decisions indicate that identification of the specific dictates of due process generally requires consideration of three distinct factors: first, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and, finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.

Since a recipient whose benefits are terminated is awarded full retroactive relief if he ultimately prevails, his sole interest is in the uninterrupted receipt of this source of income pending final administrative decision on his claim.

Only in Goldberg has the Court held that due process requires an evidentiary hearing prior to a temporary deprivation. It was emphasized there that welfare assistance is given to persons on the very margin of subsistence.…

Eligibility for disability benefits, in contrast, is not based upon financial need.

As Goldberg illustrates, the degree of potential deprivation that may be created by a particular decision is a factor to be considered in assessing the validity of any administrative decision-making process. The potential deprivation here is generally likely to be less than in Goldberg, although the degree of difference can be overstated. As the District Court emphasized, to remain eligible for benefits, a recipient must be “unable to engage in substantial gainful activity.” Thus, in contrast to the discharged federal employee in Arnett v. Kennedy, 416 U.S. 134 (1974), there is little possibility that the terminated recipient will be able to find even temporary employment to ameliorate the interim loss.

As we recognized last Term in Fusari v. Steinberg, 419 U.S. 379, 389 (1975), “the possible length of wrongful deprivation of … benefits [also] is an important factor in assessing the impact of official action on the private interests.” The Secretary concedes that the delay between a request for a hearing before an administrative law judge and a decision on the claim is currently between 10 and 11 months. Since a terminated recipient must first obtain a reconsideration decision as a prerequisite to invoking his right to an evidentiary hearing, the delay between the actual cutoff of benefits and final decision after a hearing exceeds one year.

In view of the torpidity of this administrative review process, and the typically modest resources of the family unit of the physically disabled worker, the hardship imposed upon the erroneously terminated disability recipient may be significant. Still, the disabled worker’s need is likely to be less than that of a welfare recipient. In addition to the possibility of access to private resources, other forms of government assistance will become available where the termination of disability benefits places a worker or his family below the subsistence level. In view of these potential sources of temporary income, there is less reason here than in Goldberg to depart from the ordinary principle, established by our decisions, that something less than an evidentiary hearing is sufficient prior to adverse administrative action.

An additional factor to be considered here is the fairness and reliability of the existing pretermination procedures, and the probable value, if any, of additional procedural safeguards. Central to the evaluation of any administrative process is the nature of the relevant inquiry. In order to remain eligible for benefits, the disabled worker must demonstrate by means of “medically acceptable clinical and laboratory diagnostic techniques,” 42 U.S.C. § 423(d)(3), that he is unable “to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment….” § 423(d)(1)(A) (emphasis supplied by Court). In short, a medical assessment of the worker’s physical or mental condition is required. This is a more sharply focused and easily documented decision than the typical determination of welfare entitlement. In the latter case, a wide variety of information may be deemed relevant, and issues of witness credibility and veracity often are critical to the decisionmaking process.

By contrast, the decision whether to discontinue disability benefits will turn, in most cases, upon “routine, standard, and unbiased medical reports by physician specialists,” Richardson v. Perales, 402 U.S. 389, 404 (1971), concerning a subject whom they have personally examined. To be sure, credibility and veracity may be a factor in the ultimate disability assessment in some cases. But procedural due process rules are shaped by the risk of error inherent in the truthfinding process as applied to the generality of cases, not the rare exceptions. The potential value of an evidentiary hearing, or even oral presentation to the decisionmaker, is substantially less in this context than in Goldberg.

The decision in Goldberg also was based on the Court’s conclusion that written submissions were an inadequate substitute for oral presentation because they did not provide an effective means for the recipient to communicate his case to the decisionmaker. Written submissions were viewed as an unrealistic option, for most recipients lacked the “educational attainment necessary to write effectively,” and could not afford professional assistance. In addition, such submissions would not provide the “flexibility of oral presentations” or “permit the recipient to mold his argument to the issues the decisionmaker appears to regard as important.” Goldberg, 397 U.S. at 269. In the context of the disability-benefits-entitlement assessment the administrative procedures under review here fully answer these objections.

The detailed questionnaire which the state agency periodically sends the recipient identifies with particularity the information relevant to the entitlement decision, and the recipient is invited to obtain assistance from the local SSA office in completing the questionnaire. More important, the information critical to the entitlement decision usually is derived from medical sources, such as the treating physician. Such sources are likely to be able to communicate more effectively through written documents than are welfare recipients or the lay witnesses supporting their cause. The conclusions of physicians often are supported by X-rays and the results of clinical or laboratory tests, information typically more amenable to written than to oral presentation.

A further safeguard against mistake is the policy of allowing the disability recipient’s representative full access to all information relied upon by the state agency. In addition, prior to the cutoff of benefits, the agency informs the recipient of its tentative assessment, the reasons therefor, and provides a summary of the evidence that it considers most relevant. Opportunity is then afforded the recipient to submit additional evidence or arguments, enabling him to challenge directly the accuracy of information in his file, as well as the correctness of the agency’s tentative conclusions. These procedures, again as contrasted with those before the Court in Goldberg, enable the recipient to “mold” his argument to respond to the precise issues which the decisionmaker regards as crucial.

In striking the appropriate due process balance, the final factor to be assessed is the public interest. This includes the administrative burden and other societal costs that would be associated with requiring, as a matter of constitutional right, an evidentiary hearing upon demand in all cases prior to the termination of disability benefits. The most visible burden would be the incremental cost resulting from the increased number of hearings and the expense of providing benefits to ineligible recipients pending decision. No one can predict the extent of the increase, but the fact that full benefits would continue until after such hearings would assure the exhaustion in most cases of this attractive option. Nor would the theoretical right of the Secretary to recover undeserved benefits result, as a practical matter, in any substantial offset to the added outlay of public funds. The parties submit widely varying estimates of the probable additional financial cost. We only need say that experience with the constitutionalizing of government procedures suggests that the ultimate additional cost in terms of money and administrative burden would not be insubstantial.

Financial cost alone is not a controlling weight in determining whether due process requires a particular procedural safeguard prior to some administrative decision. But the Government’s interest, and hence that of the public, in conserving scarce fiscal and administrative resources, is a factor that must be weighed. At some point the benefit of an additional safeguard to the individual affected by the administrative action and to society in terms of increased assurance that the action is just, may be outweighed by the cost. Significantly, the cost of protecting those whom the preliminary administrative process has identified as likely to be found undeserving may in the end come out of the pockets of the deserving since resources available for any particular program of social welfare are not unlimited.

The ultimate balance involves a determination as to when, under our constitutional system, judicial-type procedures must be imposed upon administrative action to assure fairness. In assessing what process is due in this case, substantial weight must be given to the good faith judgments of the individuals charged by Congress with the administration of social welfare programs that the procedures they have provided assure fair consideration of the entitlement claims of individuals. This is especially so where, as here, the prescribed procedures not only provide the claimant with an effective process for asserting his claim prior to any administrative action, but also assure a right to an evidentiary hearing, as well as to subsequent judicial review, before the denial of his claim becomes final.

We conclude that an evidentiary hearing is not required prior to the termination of disability benefits, and that the present administrative procedures fully comport with due process.

Justice Brennan, dissenting.

For the reasons stated in my dissenting opinion in Richardson v. Wright, 405 U.S. 208 (1972), I agree with the District Court and the Court of Appeals that, prior to termination of benefits, Eldridge must be afforded an evidentiary hearing of the type required for welfare beneficiaries …. I would add that the Court’s consideration that a discontinuance of disability benefits may cause the recipient to suffer only a limited deprivation is no argument. It is speculative. Moreover, the very legislative determination to provide disability benefits, without any prerequisite determination of need in fact, presumes a need by the recipient which is not this Court’s function to denigrate. Indeed, in the present case, it is indicated that because disability benefits were terminated there was a foreclosure upon the Eldridge home and the family’s furniture was repossessed, forcing Eldridge, his wife and children to sleep in one bed.

The Mathews test balances three considerations to determine what process is due: the importance of the interest at stake to the individual; the extent to which additional procedures are likely to result in a more reliable determination; and the burdens additional procedures would impose on the government. Consideration of these factors seems logical, but their application leaves much room for unpredictability about required procedure, especially about whether a hearing must be conducted before action is taken. In Goldberg the Court held that a hearing must be held before welfare benefits could be terminated; in Mathews the Court said such a step was not required for termination of disability benefits. Applying the Mathews test the Court has held that a school security guard could be terminated without a prior hearing if given an opportunity to provide information before termination, 5 a police officer could be suspended for misconduct without a prior hearing, 6 and a medical student could be dismissed for poor clinical performance without a hearing based on a review by a panel of doctors and administrators. 7

Due Process and Fundamental Rights

In the Due Process Clause the U.S. Supreme Court has found more than assurance that a meaningful procedure will be followed when government action affects someone’s life, liberty, or property. The Court also has relied on the notion of due process for identification of other rights deemed fundamental.

Implied Fundamental Rights

As demonstrated in the discussion of Griswold v. Connecticut in Chapter 2 , the U.S. Supreme Court has pointed to due process to protect implied fundamental rights, including the right to privacy described in Griswold and later cases. As Justice Harlan put it in Griswold, protection of fundamental rights is “implicit in the concept of ordered liberty” and required as part of due process. This notion of carving out fundamental rights as unassailable has been called substantive due process.

At first the substantive due process notion was applied to economic rights. In 1905 in Lochner v. New York, 8 the Court held that a New York law limiting bakers’ working hours violated a “right to free contract” implicit in the Fourteenth Amendment’s Due Process Clause, which the Court said protected the employer’s right to make employment decisions as well as the employee’s decisions about working. During the Great Depression the Court changed course under considerable pressure from President Franklin Roosevelt, whose administration’s economic regulations were being invalidated by the Court as unconstitutional intrusions into the freedom of contract. In 1937 in West Coast Hotel Co. v. Parrish, 9 the Court shifted and upheld minimum wage legislation, saying that the freedom to contract was not “absolute and uncontrollable” and that economic “regulation which is reasonable in relation to its subject and is adopted in the interests of the community is due process.” 10 The substance of economic restrictions therefore no longer much mattered provided they were the product of the legislative process. The Court also upheld labor regulations of steel industry, 11 adopting a deferential review of legislation regulating commerce and thereafter enabling vast expansion of economic regulations. For several decades substantive due process remained dormant.

As discussed in Chapter 2 of this book, substantive due process reemerged in Griswold v. Connecticut when a majority of the Court held that individuals had an implied fundamental right to privacy. As Justice Harlan put it in Griswold, the Due Process Clause protected basic values “implicit in the concept of ordered liberty,” though the Court stopped referring to economic rights as among those basic values. The focus became a right of privacy, which later arose in Roe v. Wade, 12 the decision that continues to define the Court’s approach to abortion laws. In Roe the Court held that the right of privacy was broad enough to cover a mother’s abortion decision. The Court decided that a legal prohibition against abortion in the first trimester of pregnancy violated a mother’s right of due process, but that abortions in the second trimester could be regulated and they could be prohibited in the third trimester. The notion of substantive due process as reinvigorated in Griswold therefore became the foundation for the Court’s approach to one of the most controversial issues it has faced.

Incorporation Against the States

As previously noted the Bill of Rights was aimed at the federal government. The Fourteenth Amendment’s due process guaranties against state infringement served as a springboard for the U.S. Supreme Court to apply the original Bill of Rights to state action. This expansion occurred in a series of cases through a judicial interpretative process known as incorporation.

The Court’s justices have disagreed about the extent to which the Bill of Rights should be applied to state laws based on the Fourteenth Amendment. Some saw no authority for such a step, such as Justice Stanley Reed who said, “Nothing has been called to our attention that either the framers of the Fourteenth Amendment or the states that adopted intended its due process clause to draw within its scope the earlier amendments to the Constitution.” 13 But Justice Hugo Black argued that the Fourteenth Amendment was intended to make all of the Bill of Rights applicable to the states. He said, “In my judgment that history conclusively demonstrates that the language of the first section of the Fourteenth Amendment, taken as a whole, was thought by those responsible for its submission to the people, and by those who opposed its submission, sufficiently explicit to guarantee that thereafter no state could deprive its citizens of the privileges and protections of the Bill of Rights.” 14 Neither Reed’s nor Black’s view was accepted by a majority of the Court. The approach that the Court did follow is known as “selective incorporation,” which as Justice Felix Frankfurter described it, required the Court to give the Due Process Clause of the Fourteenth Amendment an “independent function,” applying protections in the Bill of Rights against the states according to “accepted notions of justice.” 15

By now the Court has incorporated almost all of the Bill of Rights into the Fourteenth Amendment’s due process guaranty. The incorporated rights include the First Amendment protections for free speech, press, and assembly, and the right to exercise of religion and against establishment of religion; the Fourth Amendment protections against unreasonable searches and seizures; the Fifth Amendment’s prohibitions against double jeopardy and self-incrimination; the Sixth Amendment’s criminal procedure guaranties of a speedy and public trial, juries, witness confrontation, one’s own witnesses, and a lawyer; and the Eighth Amendment’s prohibition against cruel and unusual punishment. There is now little notable difference between the rights that have been found to be protected against federal and state action.

Equal Protection

Enacted in the aftermath of the Civil War, the Equal Protection Clause was aimed at state-sponsored racial discrimination in the formerly rebellious states. It did not achieve widespread social compliance. Nor did the U.S. Supreme Court readily embrace the principles of equal protection. Several decades later, in 1896 in Plessy v. Ferguson, 16 the Court still held the view that state law could segregate people by race as long as they had separate but equal facilities. For many years thereafter, the Equal Protection Clause served little function in constitutional interpretation. For instance, in 1927 in Buck v. Bell, 17 Justice Oliver Wendell Holmes said that Virginia’s sterilization of state hospital inmates did not deny them equal protection, and referred to an equal protection contention as “the usual last resort of constitutional arguments to point out shortcomings of this sort.” 18

In 1954 the Court at last rescinded its approval of “separate but equal.” In the landmark case of Brown v. Board of Education, 19 the Court held that separate state public schools were inherently unequal, and in Bolling v. Sharpe, 20 the Court held that the same was true under federal law with respect to the District of Columbia’s public schools. Since Brown v. Board of Education the Court has subjected many other classifications to equal protection review according to an analytical framework for determining the degree to which such classifications will be scrutinized.

Legal Preferences: Grutter v. Bollinger

The consideration of race in a selection process for hiring or school admissions is among the most controversial legal issues. In the 2003 case of Grutter v. Bollinger, the U.S. Supreme Court reviewed the University of Michigan Law School’s admission policy. The policy required consideration of a range of variables and declared a commitment to enrollment of a “critical mass” of underrepresented minority students. A white student who had high grades and test scores but who was denied admission challenged the policy, alleging that the law school discriminated against her on the basis of race in violation of the Fourteenth Amendment’s Equal Protection Clause. According to the Court’s equal protection analysis, racial classifications are subject to strict scrutiny. This case illustrates just how differently justices can go about applying such scrutiny.

Grutter v. Bollinger 539 U.S. 306 (2003)

Justice O’Connor, writing for the Court.

This case requires us to decide whether the use of race as a factor in student admissions by the University of Michigan Law School (Law School) is unlawful.

The Law School ranks among the Nation’s top law schools. It receives more than 3,500 applications each year for a class of around 350 students. Seeking to “admit a group of students who individually and collectively are among the most capable,” the Law School looks for individuals with “substantial promise for success in law school” and “a strong likelihood of succeeding in the practice of law and contributing in diverse ways to the well-being of others.” More broadly, the Law School seeks “a mix of students with varying backgrounds and experiences who will respect and learn from each other.”

The hallmark of that policy is its focus on academic ability coupled with a flexible assessment of applicants’ talents, experiences, and potential “to contribute to the learning of those around them.” The policy requires admissions officials to evaluate each applicant based on all the information available in the file, including a personal statement, letters of recommendation, and an essay describing the ways in which the applicant will contribute to the life and diversity of the Law School.

The policy does not restrict the types of diversity contributions eligible for “substantial weight” in the admissions process, but instead recognizes “many possible bases for diversity admissions.” The policy does, however, reaffirm the Law School’s longstanding commitment to “one particular type of diversity,” that is, “racial and ethnic diversity with special reference to the inclusion of students from groups which have been historically discriminated against, like African-Americans, Hispanics and Native Americans, who without this commitment might not be represented in our student body in meaningful numbers.” By enrolling a “‘critical mass’ of [underrepresented] minority students,” the Law School seeks to “ensur[e] their ability to make unique contributions to the character of the Law School.”

Petitioner Barbara Grutter is a white Michigan resident who applied to the Law School in 1996 with a 3.8 GPA and 161 LSAT score. The Law School initially placed petitioner on a waiting list, but subsequently rejected her application. Petitioner alleged that respondents discriminated against her on the basis of race in violation of the Fourteenth Amendment ….

Because the Fourteenth Amendment “protect[s] persons, not groups,” all “governmental action based on race—a group classification long recognized as in most circumstances irrelevant and therefore prohibited—should be subjected to detailed judicial inquiry to ensure that the personal right to equal protection of the laws has not been infringed.” Adarand Constructors, Inc. v. Peña, 515 U.S. 200, 227 (1995).

We have held that all racial classifications imposed by government “must be analyzed by a reviewing court under strict scrutiny.” Id. This means that such classifications are constitutional only if they are narrowly tailored to further compelling governmental interests.

Before this Court, as they have throughout this litigation, respondents assert only one justification for their use of race in the admissions process: obtaining “the educational benefits that flow from a diverse student body.” In other words, the Law School asks us to recognize, in the context of higher education, a compelling state interest in student body diversity.

The Law School’s educational judgment that such diversity is essential to its educational mission is one to which we defer. Our scrutiny of the interest asserted by the Law School is no less strict for taking into account complex educational judgments in an area that lies primarily within the expertise of the university.

We have long recognized that, given the important purpose of public education and the expansive freedoms of speech and thought associated with the university environment, universities occupy a special niche in our constitutional tradition. Our conclusion that the Law School has a compelling interest in a diverse student body is informed by our view that attaining a diverse student body is at the heart of the Law School’s proper institutional mission, and that “good faith” on the part of a university is “presumed” absent “a showing to the contrary.” Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 318–19 (1978).

As part of its goal of “assembling a class that is both exceptionally academically qualified and broadly diverse,” the Law School seeks to “enroll a ‘critical mass’ of minority students.” The Law School’s interest is not simply “to assure within its student body some specified percentage of a particular group merely because of its race or ethnic origin.” Bakke, 438 U.S. at 307. That would amount to outright racial balancing, which is patently unconstitutional. Rather, the Law School’s concept of critical mass is defined by reference to the educational benefits that diversity is designed to produce.

These benefits are substantial. As the District Court emphasized, the Law School’s admissions policy promotes “cross-racial understanding,” helps to break down racial stereotypes, and “enables [students] to better understand persons of different races.” These benefits are “important and laudable,” because “classroom discussion is livelier, more spirited, and simply more enlightening and interesting” when the students have “the greatest possible variety of backgrounds.”

These benefits are not theoretical but real, as major American businesses have made clear that the skills needed in today’s increasingly global marketplace can only be developed through exposure to widely diverse people, cultures, ideas, and viewpoints.

We have repeatedly acknowledged the overriding importance of preparing students for work and citizenship, describing education as pivotal to “sustaining our political and cultural heritage” with a fundamental role in maintaining the fabric of society. Plyler v. Doe, 457 U.S. 202, 221 (1982). For this reason, the diffusion of knowledge and opportunity through public institutions of higher education must be accessible to all individuals regardless of race or ethnicity.

Moreover, universities, and in particular, law schools, represent the training ground for a large number of our Nation’s leaders. Individuals with law degrees occupy roughly half the state governorships, more than half the seats in the United States Senate, and more than a third of the seats in the United States House of Representatives. The pattern is even more striking when it comes to highly selective law schools. A handful of these schools accounts for 25 of the 100 United States Senators, 74 United States Courts of Appeals judges, and nearly 200 of the more than 600 United States District Court judges.

In order to cultivate a set of leaders with legitimacy in the eyes of the citizenry, it is necessary that the path to leadership be visibly open to talented and qualified individuals of every race and ethnicity.

Even in the limited circumstance when drawing racial distinctions is permissible to further a compelling state interest, government is still “constrained in how it may pursue that end: [T]he means chosen to accomplish the [government’s] asserted purpose must be specifically and narrowly framed to accomplish that purpose.” Shaw v. Hunt, 517 U.S. 899, 908 (1996).

To be narrowly tailored, a race-conscious admissions program cannot use a quota system—it cannot “insulat[e] each category of applicants with certain desired qualifications from competition with all other applicants.” Bakke, 438 U.S. at 315. Instead, a university may consider race or ethnicity only as a “‘plus’ in a particular applicant’s file,” without “insulat[ing] the individual from comparison with all other candidates for the available seats.” Id. at 317.

The Law School’s goal of attaining a critical mass of underrepresented minority students does not transform its program into a quota. Nor, as Justice Kennedy posits, does the Law School’s consultation of the “daily reports,” which keep track of the racial and ethnic composition of the class (as well as of residency and gender), “sugges[t] there was no further attempt at individual review save for race itself” during the final stages of the admissions process. To the contrary, the Law School’s admissions officers testified without contradiction that they never gave race any more or less weight based on the information contained in these reports. Moreover, as Justice Kennedy concedes, between 1993 and 2000, the number of African-American, Latino, and Native-American students in each class at the Law School varied from 13.5 to 20.1 percent, a range inconsistent with a quota.

We also find that, like the Harvard plan Justice Powell referenced in Bakke, the Law School’s race-conscious admissions program adequately ensures that all factors that may contribute to student body diversity are meaningfully considered alongside race in admissions decisions. With respect to the use of race itself, all underrepresented minority students admitted by the Law School have been deemed qualified. By virtue of our Nation’s struggle with racial inequality, such students are both likely to have experiences of particular importance to the Law School’s mission, and less likely to be admitted in meaningful numbers on criteria that ignore those experiences.

We take the Law School at its word that it would “like nothing better than to find a race-neutral admissions formula” and will terminate its race-conscious admissions program as soon as practicable. It has been 25 years since Justice Powell first approved the use of race to further an interest in student body diversity in the context of public higher education. Since that time, the number of minority applicants with high grades and test scores has indeed increased. We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.

Justice Thomas, concurring in part and dissenting in part.

Frederick Douglass, speaking to a group of abolitionists almost 140 years ago, delivered a message lost on today’s majority:

· [I]n regard to the colored people, there is always more that is benevolent, I perceive, than just, manifested towards us. What I ask for the negro is not benevolence, not pity, not sympathy, but simply justice. The American people have always been anxious to know what they shall do with us…. I have had but one answer from the beginning. Do nothing with us! Your doing with us has already played the mischief with us. Do nothing with us! If the apples will not remain on the tree of their own strength, if they are worm-eaten at the core, if they are early ripe and disposed to fall, let them fall! … And if the negro cannot stand on his own legs, let him fall also. All I ask is, give him a chance to stand on his own legs! Let him alone! … [Y]our interference is doing him positive injury.

The Constitution abhors classifications based on race, not only because those classifications can harm favored races or are based on illegitimate motives, but also because every time the government places citizens on racial registers and makes race relevant to the provision of burdens or benefits, it demeans us all.

While legal education at a public university may be good policy or otherwise laudable, it is obviously not a pressing public necessity when the correct legal standard is applied. [T]he absence of a public, American Bar Association (ABA) accredited, law school in Alaska, Delaware, Massachusetts, New Hampshire, and Rhode Island, provides further evidence that Michigan’s maintenance of the Law School does not constitute a compelling state interest.

The only cognizable state interests vindicated by operating a public law school are, therefore, the education of that State’s citizens and the training of that State’s lawyers.

The Law School today, however, does precious little training of those attorneys who will serve the citizens of Michigan. In 2002, graduates of the University of Michigan Law School made up less than 6% of applicants to the Michigan bar, even though the Law School’s graduates constitute nearly 30% of all law students graduating in Michigan. Less than 16% of the Law School’s graduating class elects to stay in Michigan after law school.

In sum, the Law School trains few Michigan residents and overwhelmingly serves students, who, as lawyers, leave the State of Michigan. The Law School’s decision to be an elite institution does little to advance the welfare of the people of Michigan or any cognizable interest of the State of Michigan.

With the adoption of different admissions methods, such as accepting all students who meet minimum qualifications, the Law School could achieve its vision of the racially aesthetic student body without the use of racial discrimination.

The Court bases its unprecedented deference to the Law School—a deference antithetical to strict scrutiny—on an idea of “educational autonomy” grounded in the First Amendment. In my view, there is no basis for a right of public universities to do what would otherwise violate the Equal Protection Clause.

The absence of any articulated legal principle supporting the majority’s principal holding suggests another rationale. I believe what lies beneath the Court’s decision today are the benighted notions that one can tell when racial discrimination benefits (rather than hurts) minority groups, and that racial discrimination is necessary to remedy general societal ills.

It is uncontested that each year, the Law School admits a handful of blacks who would be admitted in the absence of racial discrimination. Who can differentiate between those who belong and those who do not? The majority of blacks are admitted to the Law School because of discrimination, and because of this policy all are tarred as undeserving. This problem of stigma does not depend on determinacy as to whether those stigmatized are actually the “beneficiaries” of racial discrimination. When blacks take positions in the highest places of government, industry, or academia, it is an open question today whether their skin color played a part in their advancement.

The Court also holds that racial discrimination in admissions should be given another 25 years before it is deemed no longer narrowly tailored to the Law School’s fabricated compelling state interest. While I agree that in 25 years the practices of the Law School will be illegal, they are, for the reasons I have given, illegal now.

Chief Justice Rehnquist, dissenting.

From 1995 through 2000, the Law School admitted between 1,130 and 1,310 students. Of those, between 13 and 19 were Native American, between 91 and 108 were African-Americans, and between 47 and 56 were Hispanic. If the Law School is admitting between 91 and 108 African-Americans in order to achieve “critical mass,” thereby preventing African-American students from feeling “isolated or like spokespersons for their race,” one would think that a number of the same order of magnitude would be necessary to accomplish the same purpose for Hispanics and Native Americans. Similarly, even if all of the Native American applicants admitted in a given year matriculate, which the record demonstrates is not at all the case, how can this possibly constitute a “critical mass” of Native Americans in a class of over 350 students? In order for this pattern of admission to be consistent with the Law School’s explanation of “critical mass,” one would have to believe that the objectives of “critical mass” offered by respondents are achieved with only half the number of Hispanics and one-sixth the number of Native Americans as compared to African-Americans.

[T]he correlation between the percentage of the Law School’s pool of applicants who are members of the three minority groups and the percentage of the admitted applicants who are members of these same groups is far too precise to be dismissed as merely the result of the school paying “some attention to [the] numbers.” [F]rom 1995 through 2000 the percentage of admitted applicants who were members of these minority groups closely tracked the percentage of individuals in the school’s applicant pool who were from the same groups.

The Law School cannot precisely control which of its admitted applicants decide to attend the university. But it can and, as the numbers demonstrate, clearly does employ racial preferences in extending offers of admission.

The Court, in an unprecedented display of deference under our strict scrutiny analysis, upholds the Law School’s program despite its obvious flaws. We have said that when it comes to the use of race, the connection between the ends and the means used to attain them must be precise. But here the flaw is deeper than that; it is not merely a question of “fit” between ends and means. Here the means actually used are forbidden by the Equal Protection Clause of the Constitution.

Justice Kennedy, dissenting.

About 80% to 85% of the places in the entering class are given to applicants in the upper range of Law School Admissions Test scores and grades. An applicant with these credentials likely will be admitted without consideration of race or ethnicity. With respect to the remaining 15% to 20% of the seats, race is likely outcome determinative for many members of minority groups.

The Law School has not demonstrated how individual consideration is, or can be, preserved at this stage of the application process given the instruction to attain what it calls critical mass. In fact the evidence shows otherwise. There was little deviation among admitted minority students during the years from 1995 to 1998. The percentage of enrolled minorities fluctuated only by 0.3%, from 13.5% to 13.8%. The number of minority students to whom offers were extended varied by just a slightly greater magnitude of 2.2%, from the high of 15.6% in 1995 to the low of 13.4% in 1998.

The obvious tension between the pursuit of critical mass and the requirement of individual review increased by the end of the admissions season. Most of the decisions where race may decide the outcome are made during this period. The admissions officers consulted the daily reports which indicated the composition of the incoming class along racial lines. As Dennis Shields, Director of Admissions from 1991 to 1996, stated, “the further [he] went into the [admissions] season the more frequently [he] would want to look at these [reports] and see the change from day-to-day.” These reports would “track exactly where [the Law School] st[ood] at any given time in assembling the class,” and so would tell the admissions personnel whether they were short of assembling a critical mass of minority students. Shields generated these reports because the Law School’s admissions policy told him the racial make-up of the entering class was “something [he] need[ed] to be concerned about,” and so he had “to find a way of tracking what’s going on.”

The consultation of daily reports during the last stages in the admissions process suggests there was no further attempt at individual review save for race itself. The admissions officers could use the reports to recalibrate the plus factor given to race depending on how close they were to achieving the Law School’s goal of critical mass. The bonus factor of race would then become divorced from individual review; it would be premised instead on the numerical objective set by the Law School.

There is no constitutional objection to the goal of considering race as one modest factor among many others to achieve diversity, but an educational institution must ensure, through sufficient procedures, that each applicant receives individual consideration and that race does not become a predominant factor in the admissions decisionmaking. The Law School failed to comply with this requirement, and by no means has it carried its burden to show otherwise by the test of strict scrutiny.

If universities are given the latitude to administer programs that are tantamount to quotas, they will have few incentives to make the existing minority admissions schemes transparent and protective of individual review.

As the majority in Grutter v. Bollinger noted, constitutional rights belong to individuals, not groups. The law school candidate before the Court was not accused of any wrongful conduct herself, and from her perspective she would have been admitted if her race were different. The justices who decided that the law school’s consideration of race as a “plus factor” was nonetheless permissible obviously felt strongly that institutions needed some leniency from racial blindness to take steps to diversify. These justices said they would defer to the law school’s judgment despite acknowledging that, according to their own cases, race classifications must always be subjected to strict scrutiny. The dissenting justices argued that upon close scrutiny the school’s policy is revealed as a disguised process for ensuring that a minimum number of students of a particular race would be enrolled. They had a different version of what it meant to apply strict scrutiny. None of the justices’ analytical approaches can be divorced from their policy perspectives.

Scrutiny of Classifications

Although the majority and dissenting justices in Grutter disagreed about how to scrutinize the law school’s admissions policy, the law has been settled that under the Equal Protection Clause racial classifications are subject to something called “strict scrutiny.” All agree that strict scrutiny is the least deferential of several levels of scrutiny that the Court applies in an equal protection analysis. The scrutiny gradations can be traced to a famous “Footnote Four” in United States v. Carolene Products Co., 21 a 1938 case in which the Court upheld federal milk product regulations. In that footnote Justice Stone suggested legislation should be more closely scrutinized if it implicates a prohibition of the Bill of Rights or affects the rights of “discrete and insular minorities” who were not protected in the democratic process. The Court later followed this suggestion in its equal protection cases.

In the equal protection analysis the level of scrutiny depends on whether the Court deems the class to be suspect. A class is suspect if there are unlikely to be appropriate reasons for making distinctions based on membership in it. Strict scrutiny applies to racial classifications by local, state, and federal government, including in government contracting. 22 Strict scrutiny also has been applied to distinctions based on alienage, 23 citizenship, 24 and ethnicity. 25 As the test is described in Grutter, strict scrutiny requires that the classification be narrowly tailored to further a compelling governmental interest. The Court therefore examines both the classification’s purpose and its manner of implementation. In Grutter and in the earlier affirmative action case Bakke, which was discussed at length in Grutter, a majority of the Court held that attaining a diverse student body was a compelling interest for a university admissions program. In Bakke the Court held that holding a prescribed number of seats for an ethnic minority was not a sufficiently narrow way to pursue this interest; in Grutter the Court held that the plus factor approach was adequately tailored.

Gender classifications are not subjected to strict scrutiny. Gender distinctions sometimes are common sense, but the Court has held that the Constitution does not allow “overbroad generalizations about the different talents, capacities, or preferences of males and females.” 26 The Court applies an intermediate scrutiny that requires that classifications serve “important governmental objectives” and be “substantially related to the achievement of those objectives.” 27 “Substantially related” obviously is a lower threshold than “narrowly tailored” as required under strict scrutiny. In Michael M. v. Superior Court of Sonoma County, 28 the Court upheld a statutory rape law that prohibited males from having sex with minor women but not vice versa, based on the state’s legitimate objective of preventing teen pregnancies and the fact that only women can get pregnant. In Craig v. Boren, 29 however, the Court held that a different minimum age for males and females to purchase alcohol had not been shown to be connected to legitimate safety concerns. In United States v. Virginia, 30 the Court held that the Virginia Military Institute’s policy of excluding women also failed intermediate scrutiny because the gender integration concerns were insufficient to outweigh the importance of allowing women to participate in the unique program. The Court also has applied a similar intermediate degree of scrutiny to legal classifications based on illegitimacy. 31

Most other distinctions claimed to violate equal protection are reviewed only for a reasonable basis. In the 1970 case of Dandridge v. Williams, 32 the Court said, “In the area of economics and social welfare, a State does not violate the Equal Protection Clause merely because the classifications made by its laws are imperfect. If the classification has some ‘reasonable basis,’ it does not offend the Constitution simply because the classification ‘is not made with mathematical nicety or because in practice it results in some inequality.’” 33 The reasonable basis need not have been articulated when the classification was set. Applying a reasonable basis test means a court is highly unlikely to find fault with the challenged classification.

So far the Court has not applied heightened scrutiny to sexual orientation classifications. In 1996 in Romer v. Evans, 34 the Court held that a state constitutional amendment forbidding legal protection based on sexual orientation had no identifiable legitimate purpose and therefore failed even minimal scrutiny. Sexual orientation classifications have been successfully challenged based on state constitutions as well. The California Supreme Court struck down a same-sex marriage law, employing strict scrutiny based on a fundamental right to marriage under the California Constitution, which was later overruled by a ballot proposition declaring that only a marriage between a man and a woman is valid in the state. 35 The Massachusetts Supreme Court held that a state law prohibition against same-sex marriages had no rational basis, violating both due process and equal protection under the Massachusetts Constitution. 36 The Connecticut Supreme Court reached the same conclusion applying intermediate scrutiny. 37 Other courts use various approaches to the issue under their constitutions.

Remedies for Civil Rights Violations

Many of the constitutional cases brought before the U.S. Supreme Court seek to invalidate a law. Invalidation may not address harm that individuals have suffered from violations of their constitutional rights. Sometimes the court can rectify the situation. For instance, if the Court in Grutter had determined that the admissions policy was unconstitutional the Court could have ordered the student’s admission. In many contexts statutes authorize monetary remedies for those harmed by unconstitutional actions. Such remedies often include recovery of attorneys’ fees and other costs, which not only could allow a more full recovery of financial loss but also encourage individuals of limited means to seek relief.

Civil rights monetary remedies were authorized soon after ratification of the Fourteenth Amendment, with the Ku Klux Klan Act of 1871. Some of its provisions remain law today, including 42 U.S.C. § 1983, often simply referred to as “Section 1983.” Section 1983 provides that “[e]very person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity ….” Section 1983 actions therefore can be brought based on allegations of violations of any constitutional right under color of state law. Examples include claims for injuries resulting from excessive police force in violation of the Fourth Amendment prohibitions against unreasonable searches and seizures, or for injuries suffered by prisoners for cruel and unusual conditions prohibited by the Eighth Amendment.

In most cases a civil rights suit will be aimed at a government official or employee alleged to have acted wrongly. The Eleventh Amendment prohibits suits against the state governments but not against individual state officials. In Monell v. Department of Social Services, 38 the Court held that a local government could be liable under Section 1983 if it adopted a policy or custom that caused the deprivation. The local government is not responsible for its employees’ self-motivated individual wrongful acts.

A second wave of civil rights legislation was highlighted by the Civil Rights Act of 1964, which broadly outlawed racial segregation in schools, public places, and employment. The Civil Rights Act of 1964 also created the Equal Employment Opportunity Commission, which has the power to bring enforcement actions. Title VII of the act prohibits discrimination in employment on the basis of race, color, religion, sex, or national origin. 39 It applies to employers with 15 or more regular employees. It also prohibits sexual harassment, which is treated as sex discrimination for purposes of Title VII. The Court has held that Title VII also applies to employment practices that have a “racially disparate impact” on protected groups, not just instances of individual discrimination. 40 There are exceptions from Title VII, including for certain occupations where the classification is appropriate, such as when a religious organization hires members of its own faith. Title VII is a very far-reaching law, applying to many private associations the equal protection that constitutionally applies to government actions.

Other parts of the Civil Rights Act prohibit discrimination in contexts other than employment, including Title II that forbids discrimination at hotels, motels, restaurants, theaters, and other public accommodations. Soon after Title II was enacted the Court addressed the constitutionality of applying antidiscrimination laws to actions not involving the government. In Katzenbach v. McClung, 41 the owners of an Alabama restaurant challenged the application of the law to their policy of giving inside service only to white customers. Citing Congress’ power to regulate commerce and to enact necessary and property laws, Justice Tom Clark, writing for the Court, described Congress’ power as virtually limitless:

· The power of Congress in this field is broad and sweeping; where it keeps within its sphere and violates no express constitutional limitation it has been the rule of this Court, going back almost to the founding days of the Republic, not to interfere. The Civil Rights Act of 1964, as here applied, we find to be plainly appropriate in the resolution of what the Congress found to be a national commercial problem of the first magnitude. We find it in no violation of any express limitations of the Constitution and we therefore declare it valid. 42

The Court also quickly upheld the constitutionality of applying antiracial discrimination laws to private property agreements. In Jones v. Alfred H. Mayer Co., 43 the Court held that Congress could forbid racial discrimination in the sale of private property based on the Thirteenth Amendment’s slavery prohibition. The Court said, “At the very least, the freedom that Congress is empowered to secure under the Thirteenth Amendment includes the freedom to buy whatever a white man can buy, the right to live wherever a white man can live.” 44 The Thirteenth Amendment makes no mention of state action; it outlaws slavery anywhere and authorizes Congress to enforce this prohibition.

There are now many federal and state statutes prohibiting various forms of discrimination in the community as well as in the government. They include the federal Age Discrimination in Employment Act protecting those who are 40 or older, 45 and the federal Americans with Disabilities Act of 1990 that requires certain accommodations to be made for a “physical or mental impairment that substantially limits one or more of the major life activities of such individual.” 46 Title IX prohibits gender exclusion from education and federal financial assistance programs, and it has caused schools and colleges to redirect resources to make athletic programs available to women. 47 Many state statutes similarly forbid discrimination based on various classifications.

Criminal laws also have been enacted to address civil rights violations. For example, federal law makes it a crime for any person acting under color of law to willfully deprive someone of constitutional or legal rights. 48 Other statutes address specific types of conduct, such as violating someone’s right to vote, 49 or denial of access to fair housing. 50

Review Questions

· 1. What is the substantive due process analysis and to what rights has it been applied?

· 2. What is the constitutional interpretive process of incorporation, and what has been the result of its application?

· 3. What kinds of actions are subject to the U.S. Constitution’s due process requirements?

· 4. What is the test for determining whether a procedure for terminating government benefits satisfies the constitutional due process requirements?

· 5. What approach has the U.S. Supreme Court taken in applying the Equal Protection Clause to classifications?

· 6. To what classifications is strict scrutiny applied in the equal protection analysis?

· 7. What were the two principal opposing perspectives that justices expressed in Grutter v. Bollinger for determining whether consideration of race in admissions satisfied equal protection requirements?

· 8. To what classifications is the equal protection intermediate scrutiny applied?

· 9. To what is the equal protection reasonable basis test applied?

· 10. What are the principal laws on which civil rights claims may be made?

Notes

1.

347 U.S. 497, 499 (1954).

2.

334 U.S. 1 (1948).

3.

Jackson v. Metropolitan Edison Co., 419 U.S. 345, 353 (1974).

4.

397 U.S. 254 (1970).

5.

Cleveland Bd. of Ed. v. Loudermill, 470 U.S. 532 (1985).

6.

Gilbert v. Homar, 520 U.S. 924 (1997).

7.

Board of Curators v. Horowitz, 435 U.S. 78 (1978).

8.

198 U.S. 45 (1905).

9.

300 U.S. 379 (1937).

10.

Id. at 391.

11.

NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937).

12.

410 U.S. 113 (1973).

13.

Adamson v. California, 332 U.S. 46, 54 (1947).

14.

Id. at 74–75 (Black, J. dissenting).

15.

Id. at 67–68 (Frankfurter, J., concurring).

16.

163 U.S. 537 (1896).

17.

274 U.S. 200 (1927).

18.

Id. at 208.

19.

347 U.S. 483 (1954).

20.

347 U.S. 497 (1954).

21.

304 U.S. 144 (1938).

22.

Adarand Constructors, Inc. v. Peña, 515 U.S. 200 (1995).

23.

Graham v. Richardson, 403 U.S. 365 (1971).

24.

Oyama v. California, 332 U.S. 633 (1948).

25.

Hernandez v. Texas, 347 U.S. 475 (1954).

26.

United States v. Virginia, 518 U.S. 515, 533 (1996).

27.

Wengler v. Druggists Mut. Ins. Co., 446 U.S. 142, 150 (1980).

28.

450 U.S. 464 (1981).

29.

429 U.S. 190 (1976).

30.

United States v. Virginia, 518 U.S. 515 (1996).

31.

Mills v. Habluetzel, 456 U.S. 91 (1982).

32.

397 U.S. 471 (1970).

33.

Id. at 485 (quoting Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 78 (1911)).

34.

517 U.S. 620 (1996).

35.

In re Marriage Cases 183 P.3d 384 (Cal. 2008), overruled by Cal. Const. art. I, § 7.5.

36.

Goodridge v. Department of Public Health, 798 N.E.2d 941 (Mass. 2003).

37.

Kerrigan v. Commissioner of Public Health, 957 A.2d 407 (Conn. 2008).

38.

436 U.S. 658 (1978).

39.

42 U.S.C. § 2000e-2 (2000).

40.

Griggs v. Duke Power Co., 401 U.S. 424 (1971).

41.

379 U.S. 294 (1964).

42.

Id. at 305.

43.

392 U.S. 409 (1968).

44.

Id. at 443.

45.

42 U.S.C. §§ 6101–6107 (2000 & Supp. 2006).

46.

Id. §§ 12101–12213.

47.

20 U.S.C. §§ 1681(2000).

48.

18 U.S.C. § 242 (2000).

49.

Id. § 245.

50.

42 U.S.C. § 3631 (2000).